Kenya’s Court of Appeals overturned a 2010 ruling (as we have noted here and here), which had mandated that Kenyan courts only try cases in which the offense occurred within its territorial waters. This impaired Kenya’s ability to assist in the international effort to punish those carrying out acts of piracy on the high seas. Judge David Maraga read the opinion of the court concluding that “piracy has negative effects on the country’s economy and any state, even if not directly affected by piracy must try and punish the offenders.” Though it appears some piracy prosecutions were continuing in Kenya despite the 2010 ruling, the international community will be relieved to know that the law in Kenya is now settled and that no obstacles remain to such prosecutions.

A Dutch court convicted nine Somali pirates to four-and-a-half years imprisonment. These individuals were arrested on-board an Iranian fishing boat they had taken in April. Though they were convicted of piracy, the men were acquitted on charges of attempted murder, as it could not be determined which of the men actually fired at the Dutch marines who arrested them.

Last Friday the Greek-owned carrier ship, the MV Free Goddess, was finally released by the Somali pirates who held it since Feb. 7, 2012. All 21 members of the crew who were on board at the time the ship was attacked over eight months ago were also released and appear to be well. The pirates responsible initially sought a $9 million ransom, yet they finally settled for $2.3 million last week-though the figure has also been reported as $5.7 million. This figure was stated by a Somali pirate and has not been confirmed by the company owning the ship, Free Bulkers SA. The ransom was air-dropped onto the Free Goddess, which then headed toward Oman to refuel, get fresh water and change out the crew members. During the time the ship was held hostage it was apparently being held at Gara’ad, a haven in Puntland, Somalia often used by pirates in the area.

Suspected Nigerian pirates boarded a Panamax tanker in the Gulf of Guinea off the Ivory Coast during the night on Saturday, October 6. Fourteen pirates, armed with knives and AK-47s hijacked the ship and re-directed it to Nigerian waters. They held the ship for three days while siphoning off oil, and then released the ship as well as all crew members on October 9. This attack was particularly alarming as it is the first of its’ kind to be reported in these waters, and shows that the Nigerian pirates are becoming both more sophisticated and bold. The attack occurred further west and away from Nigerian waters than any other reported attack, in an area which until now was believed to be safe for anchoring and performing fairly time-consuming operations. These Nigerian pirates took advantage of the fact that this particular ship was only midway through a ship-to-ship operation at the time of the attack. Tanker operators may now have to reassess their practice of carrying out these operations in the waters of the Ivory Coast.

In May, Thomas P. Kelly, Principal Deputy Assistant Secretary of State gave a lengthy speech to the American Petroleum Institute outlining the U.S. strategy to address piracy. The approach includes the following:

diplomatic engagement to spur collective international action;

expanding security at sea through the use of naval assets to defend private vessels and to disrupt pirate attacks;

preventing attacks by encouraging industry to take steps to protect itself;

deterring piracy through effective legal prosecution and incarceration; and

disrupting the piracy enterprise ashore, including the financial flows that make it possible.

Of particular interest to the prosecution of pirate leaders and organizers was the following:

After an intensive review of our strategy last year, Secretary Clinton approved a series of recommendations which constitute a new strategic approach. A focus on pirate networks is now at the heart of our strategy. We are using all of the tools at our disposal in order to disrupt pirate networks and their financial flows. We are focused on identifying and apprehending the criminal conspirators who lead, manage, and finance the pirate enterprise, with the objective of bringing them to trial and disrupting pirate business processes. Often, the best way to attack organized crime is to follow the money. That’s how the U.S. put some nefarious criminals behind bars. Pirate organizers receive income both from investors and ransom payments, and disburse a portion of the proceeds of ransoms back to these investors. Already, the United States has convicted one Somali pirate negotiator.

This highlights the focus on high-value kingpins as opposed to just the foot soldiers executing attacks. In 2010, President Obama signed Executive Order 13536 concerning Somalia which identified 11 individuals who were suspected of financing piracy. The Executive Order imposed economic sanctions on individuals who “have engaged in acts that directly or indirectly threaten the peace, security, or stability of Somalia” and indicated that “among other threats to the peace, security, or stability of Somalia, acts of piracy or armed robbery at sea off the coast of Somalia threaten the peace, security, or stability of Somalia.” Some of these same individuals were named in a list created by the UN Security Council in February 2012 indicating they are “individuals and entities subject to the travel ban, assets freeze and targeted arms embargo imposed by paragraphs 1, 3 and 7 of Security Council resolution 1844 (2008).”

The list of individuals annexed to the Executive Order includes, Mohamed Abdi Garaad, who was recently arrested together with 12 other suspected pirates on 4 April by Iranian commandos after the pirates had hijacked a Chinese cargo ship. It is reported that Garaad was:

In command of one of the largest pirate militias, Garaad is outspoken and well known to the international media. He is reported to command 13 separate militia groups, totaling over 800 pirates. In a 2009 interview, he proclaimed, “The navies, they can’t stop us … we have more than 200 crews and we are increasing all the time.” Garaad is responsible for the attack on M/V Maersk Alabama, which ended with the successful operation by US Navy SEALs. After this operation, Garaad publicly threatened to retaliate against US ships and crews. Garaad is also responsible for the 2009 attack on the M/V Sea Horse, a ship delivering World Food Program aid to Somalia.

See also here and here. It is unclear whether he is in the custody of Iranian or Chinese authorities, whether he will be brought to trial and if so where and under what legal regime.

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If you haven’t heard by now, the American Navy has rescued a group of Iranian fishermen whose boat had been hijacked by Somali pirates. The pirates used the fishing dhow al Molai as a mother ship to stage attacks on other higher-value targets. Iran’s Foreign Ministry was initially silent, but has since commended the American rescue as a humanitarian gesture.

U.S. Navy Sailor greets crew member of the Iranian-flagged fishing dhow Al Molai

For the moment, the rescue is a public relations coup for the United States as tensions escalate over strengthened economic sanctions against Iran and competing shows of naval force through the Strait of Hormuz, the only waterway connecting Persian Gulf oil resources with Asia and the West. This incident is an embarrassment to Iran and highlights the indiscriminating nature of Somali piracy.

Just like other sea-faring nations, Iran has struggled to combat piracy off the coast of Somalia. There are currently about 14 ships and 254 hostages in the hands of Somali Pirates. Although EUNAVFOR estimates 7 ships and 194 hostages, not including dhows and smaller vessels. Most non-officer seafarers come from developing countries and particularly, the Philippines, India, and increasingly China. Therefore, these countries have the highest proportion of hostages being held. However, Iran has also suffered with 10 Iranians taken hostage aboard the Sinan in 2011 and another 45 taken hostage in 2008 and 2009.

Likewise, some of its ships have been targeted, with al Molai the most obvious example, but also including the Delight and the Iran Deyanat, not to mention other vessels with Iran as a destination.

In response to these attacks, Iran has sent naval vessels to the Gulf of Aden to protect Iranian ships from pirates. It appears to be maintaining two destroyers on mission in the Gulf of Aden, although increasing tensions in the Strait of Hormuz may require Iran’s navy to reallocate resources. See also here. It is unclear to what extent Iranian war ships have interacted or cooperated with other navies while on mission in the Gulf of Aden and Indian Ocean. However, Iran participates in the 19-member grouping of the Indian Ocean RIM – Association for Regional Cooperation (IOR-ARC) which also includes India, Yemen, Australia, Bangladesh, Indonesia, Kenya, Madagascar, Malaysia, Mauritius, Mozambique, Oman, Singapore, South Africa, Sri Lanka, Tanzania, Thailand, the UAE and Seychelles. The IOR-ARC issued the Bangalore Declaration last November, agreeing to share information, experiences and best practices in the fight against maritime piracy.

Although a momentary boost to the United States, this incident will be quickly overshadowed by the tension in the Strait of Hormuz. As tensions between the United States and other countries (to the extent that they are also imposing economic sanctions on Iran) continue to increase, any naval interaction with Iran will be potentially risky. Iran’s presence in the Gulf of Aden is no exception. However, with EUNAVFOR, NATO, and the United States-led international naval coalition of 25 nations all operating in the area, Iran is vastly outnumbered in that area and will be reticent to engage offensively there.

It is also worth noting that Iranian’s most valuable asset, its oil tankers, are not seriously at risk to Somali pirates. Transit through the Gulf of Aden, when tankers are most susceptible to attack by Somali pirates, is only necessary to transport oil to Western countries. Although 18 percent of Iran’s crude oil exports went to the EU in the first 6 months of 2011, that percentage will likely drop considerably as a result of new economic sanctions. The remainder of Iran’s exports go to Asia, notably Japan, India, China and South Korea which do not transit the areas most susceptible to pirate attacks. Al Molai fishing dhow was attacked much closer to Iran, but attacks in that region are exceptional.

But what of these particular Somalis? Will they be prosecuted and where? After the incident, the pirates were in American custody. The New York Times reports that the rescue occurred 210 miles off the coast of Iran, presumably in international waters. If that is the case, the United States as the seizing nation, has jurisdiction to prosecute, decide on penalties, and determine the action to be taken with regard to ships or property “subject to the rights of third parties acting in good faith.” (Article 105, UNCLOS). Iran, as a third party whose nationals were victims of the attacks, also has an interest in prosecuting the pirates. In this case, it is likely that Iran will defer to the U.S. to prosecute the pirates.

There are also some problems of proof, as the pirates apparently threw their arms overboard and claimed to be joy-riding on the seas. Therefore, prosecution will be based upon video and testimony obtained by the navy helicopters and ships that performed surveillance on the ship and the testimony of the victims.

The problem of prosecuting in United States courts is that testimony must be in person due to the confrontation clause (and the U.S. Supreme Court decision in Crawford). This is where U.S. prosecution presents significant hurdles as U.S. servicemen may not be available to testify in court and it is unclear whether video-link testimony would be constitutionally permissible. In the case of the Iranian victims, there are even more serious practical concerns, as they would have to be given permission by the Iranian government to travel to the US to testify. For these Iranians there may be a temptation to seek asylum while in the U.S. just as witnesses at the ICC have done after reaching the Hague from Africa, notably from the DRC and the CAR.

Hypothetically, the pirates could be prosecuted in Iran. Iran is a signatory to UNCLOS without any reservations as to the definition of piracy contained therein. However, Iran has not ratified the Convention and it is unclear whether Iran has particular legislation that criminalizes piracy directly. Insofar as Islamic law applies in Iran, Islam considers piracy to be forbidden and may be punishable by death. In a related context, the Iranian Foreign Ministry has called Israel’s attack of an humanitarian aid flotilla to the Gaza strip to recall, “acts of sea piracy in the past centuries, which are clear example of maritime terrorism.” In 2009, Iran also acceded to the UN Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) which defines maritime terrorism (the U.S. is also a state party). If Iran and Somalia were to request extradition of the pirates to Iran, the SUA convention requires the U.S. to pay due regard to Iran’s rights as the flag state of the victim ship(s). (Article 11(5) of SUA). Nonetheless, the U.S. would likely consider it difficult for the pirates to receive a fair trial in Iran and could deny extradition to Iran on that basis. (Article 11(6) of SUA Convention).

A more practical solution would be to identify the home community of the pirates in Somalia, be it Puntland, Galmadug, or Somaliland, etc. for prosecution in their home jurisdiction. The UN Office for Drugs and Crime has established programs to strengthen the prosecutorial capacity of some of these regions. However, there continue to be concerns of corruption and judge-intimidation that undermine confidence of a just outcome in these judicial systems. Likewise, the penalties imposed for piracy may be significantly less than in the U.S. where life-imprisonment has been the norm for recent prosecutions of Somali pirates.

Some difficult decisions will have to be made by the American authorities in this regard. Although policy will likely have been made with regard to which pirates to transfer to other authorities and which to prosecute state-side, the enhanced exposure of this particular case might require a re-examination of this calculus.

At the end of the day, piracy is perhaps the only area where the U.S. and Iran share common interests. For both countries, prosecution of pirates remains a problem without any easy solutions.

UPDATE: I just found a summary Iran submitted to the UN of Iranian law applicable to maritime piracy. The summary asserts that piracy is punishable by a sentence of 3 to 15 years imprisonment. It also states, “It should be mentioned that “moharebeh” in accordance with “Sharia Law” is resorting to arms in order to frighten people; and “mohareb” [which includes pirates] is a person convicted of “moharebeh”. The punishmen (sic) of “moharebeh” is “exile” or “death penalty”.” The summary does not state to what extent Shariah law is applied in Iran.